7 years of barbs and bouquets for Rosenthal

7 years of barbs, bouquets for DAAs Rosenthal exits race amid scandal, opinions vary about his tenure in office

Published 6:30 am, Sunday, January 6, 2008

Photo: RICK BOWMER, AP FILE

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Chuck Rosenthal, in this 2003 photo, argued before the Supreme Court Texas' challenged sodomy law. His performance was widely derided. The New York Times called it "a mismatch of advocates to a degree rarely seen at the court." The court later tossed out the Texas law. less

Chuck Rosenthal, in this 2003 photo, argued before the Supreme Court Texas' challenged sodomy law. His performance was widely derided. The New York Times called it "a mismatch of advocates to a degree rarely ... more

Photo: RICK BOWMER, AP FILE

7 years of barbs and bouquets for Rosenthal

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For lame-duck District Attorney Chuck Rosenthal — tarred by romantic scandal and abandoned by leaders of his party — it was all over but the verbal plucking. Hardly had Harris County's top prosecutor aborted his re-election campaign last week than legal tongues began wagging, analyzing the highs and lows that have marked his seven years in office.

At 61, Rosenthal, who joined the District Attorney's Office as a green, night-school law graduate 31 years ago, has established himself as a scrappy champion of law and order, an openly religious proponent of the death penalty in the nation's leading death-dealing county.

Even facing perhaps the greatest personal crisis of his career, the revelation of e-mails romantically linking him to his secretary, the married Rosenthal remained defiant, initially answering Republican leaders' calls for his resignation with a promise to run again and win.

Sweeping into office in January 2001 with the blessing of his former boss, rock-ribbed crime fighter Johnny Holmes, Rosenthal, lawyers say, has struggled to maintain his department's legacy of toughness.

Rosenthal, who typically responds to casual greetings by affirming "I'm blessed," has both gained and suffered in comparison with Holmes, observers said.

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In launching his re-election campaign earlier this year, Rosenthal boasted that his crack team of prosecutors had handled nearly 700,000 cases between 2001 and 2006, with 96 percent of appealed convictions upheld. Rosenthal noted that his staff of 563 — about half of them prosecutors — was smaller than those in some other big counties, but bragged on their penchant for hard work and their courtroom prowess.

Rosenthal took credit for creating the state's first identity theft division and a vehicular assault team that dispatches lawyers to the scene of alcohol-related accidents. Additionally, he said, he beefed up his office's juvenile division to battle truancy and set up mentoring programs for young offenders.

Bert Graham, Rosenthal's top assistant, said the district attorney's prime motivation is a burning desire to "prevent dangerous people from being on the street."

To that end, Graham said, Rosenthal has given his prosecutors leeway in how to pursue their assigned cases. "You felt that you could do what was right and not have repercussions from above," he said. And in some cases, that has meant prosecutors going to trial without evidence sufficient to obtain a "slam-dunk" conviction. "Chuck's feeling," Graham said, "is that when in doubt, let a jury decide."

The Bradford trial

That philosophy certainly is not uncommon in district attorney circles, but for Rosenthal it has resulted in occasional courtroom embarrassments.

In January 2003, Rosenthal's prosecutors went to trial against then-Houston Police Chief Clarence Bradford, who had been indicted on a charge of aggravated perjury after declaring under oath that he did not remember calling an assistant police chief a dirty name. State District Judge Brian Rains, after hearing the prosecutors' case, dismissed charges against Bradford, saying evidence was too weak to continue the trial.

Bradford, who took early retirement later that year amid controversy centering on his department's mismanaged crime lab, will seek the Democratic nomination for district attorney in March's primary elections.

Rosenthal's performance in office predictably brought barbs and bouquets, with defense lawyers — those most inclined to speak on the record — offering the harshest assessments.

Attorney Earl Musick, though, may have the broadest view. He said he admired Rosenthal when he was a young prosecutor in Holmes' administration and still considers the district attorney "a friend," but laments the course the prosecutor's office has taken.

Musick, now a defense lawyer, spent a decade as a Houston policeman attached to the District Attorney's Office. He later obtained a law degree and became a prosecutor first for Holmes, then for Rosenthal.

Musick found the young Rosenthal an exemplary lawyer, a go-to man who would help police officers with paperwork and legal questions regardless of the hour. "Chuck was always available at 2 or 3 in the morning," he said. "He would come out of bed and meet you on the streets of Houston."

Now, though, he is more critical.

"The only thing that I truly believe, having worked on both sides of the bench, is that the DA's office has got to change. I think that for several years now that they've been going not down the right road but the wrong road. I think they need a sweeping change and that starts at the top."

Typical of the incidents that trouble Musick were Rosenthal's 2003 oral arguments before the U.S. Supreme Court in defense of the state's challenged sodomy law. The case grew out of the 1998 arrests of two Harris County men who were arrested while having sex by officers dispatched on a burglary call.

Rosenthal opted to make the presentation himself. The result, as reflected in the national media, was a disaster.

Rosenthal, opined The New York Times, was a first-timer who made "first-timer's mistakes."

Three months later, the high court tossed out the Texas law.

'Loose cannons'

Robert Fickman
, a defense lawyer and past-president of the Harris County Criminal Lawyer's Association, commended Rosenthal for the experienced lawyers he's placed in key positions and acknowledged that much of the criticism that's levelled at him may not be fair.

But, he said, there's a general perception in the defense bar that "he doesn't rein in loose cannons on his staff, that he lets people on his staff engage in conduct that's aggressive to the point of being borderline behavior."

Rosenthal himself faced such accusations as a young prosecutor in Holmes' office.

In one case, perhaps more a reflection of immaturity than malice, Rosenthal detonated firecrackers in an office staircase.

Holmes suspended him for a week. In a more serious episode, Rosenthal drew fire for his alleged complicity in a scheme in which undercover police officers posed as lawyers to talk with a jailed suspect.

Defense lawyer Bill Taylor, once Rosenthal's supervisor at the District Attorney's Office, found the young prosecutor less than impressive. "I don't think he was one of our brighter stars," Taylor said, "but he was well-connected."

Some of Rosenthal's biggest headaches — the debacle of the police department's bungling crime lab, for instance — were ones he inherited, Fickman said. But to those instances Rosenthal brought his own penchant for drama.

Despite repeated calls — including those from 22 district judges — for the crime lab to be scrutinized by independent investigators, Rosenthal refused to step aside. His first assistant Graham explained that the district attorney was fearful of establishing a bad precedent by opening the door to an outside probe.

The district attorney relented only when the second of three prisoners convicted with bogus crime lab evidence was exonerated.

Today, Fickman said, lawyers, including some in the District Attorney's Office, are critical of Rosenthal for what they consider his lack of political acumen and his penchant for shooting from the hip. Even so, Fickman said, Rosenthal should get credit for carrying on the legacy of Holmes, who is close to revered in courthouse circles for the integrity he brought to the office.

Defense lawyer Brian Wice concurred that Rosenthal has brought top people to his office but added that, overall, he has sadly failed to measure up to the standards of his predecessor.

"Never follow a legend," Wice said. "Holmes was right out of central casting for a big-city district attorney. I never thought Chuck appeared comfortable in the public eye. This is a job in which you are a spokesman for the victims of crime. Any time Chuck was before a camera, he was as nervous as Mike Tyson at a spelling contest."

Rosenthal, Wice said, "is a guy who sees things in black and white." And though that is commendable to an extent, it has led him into troubled waters. Wice believes that trait led Rosenthal to take up the sodomy law argument. And, he said, it led to the fierce 2002 prosecution of Andrea Yates, the mentally ill Clear Lake housewife who drowned her children.

"He was like a pit bull with a chicken wing in his mouth," Wice said of the Yates case. "There was no walking away."

First, he said, prosecutors pushed to have Yates executed. Jurors balked, sentencing the woman to life in prison — a sentence that would make her parole-eligible after 40 years. When a higher court overturned the conviction because a prosecution witness had offered untrue testimony, Rosenthal's lawyers retried the case.

Insanity ruled

Jurors found Yates not guilty by reason of insanity. Yates today is under treatment at a low-security mental hospital in Kerrville.

David Dow, a University of Houston law professor and director of the Texas Innocence Network, said Rosenthal shares Holmes' "tenacity in seeking the death penalty."

But, he said, "practicing lawyers generally thought there was more integrity in the behavior of the District Attorney's Office under Holmes ... It's unimaginable that Holmes would have sought the death penalty against Andrea Yates, and that's the sentence Rosenthal's prosecutors pursued with great intensity."

Holmes, though, said Rosenthal consulted him on the Yates case.

"I did not recommend that he do anything with respect to the case," Holmes said in an e-mail from his Austin County ranch. " ... I told him I thought he was correct in seeking death. I would have done the same thing."

"I did say," Holmes said, "that if the prosecutor did not seek the death penalty, we would never know whether or not the public, in the form of a Harris County jury, thought that it was a death penalty circumstance. When the DA decides not to seek death, that person (the DA) is unilaterally saying that the case is not a death case, regardless of what the Legislature or the public thinks."